During the claims adjustment process, and prior to filing suit on August 20, 2008, Plaintiff provided State Farm with an affidavit of his nearby neighbor, Mr. Ziz, who witnessed the total destruction of the outbuilding and fence prior to the arrival of water.
Joseph Ziz signed his affidavit January 08, 2008, and State Farm continued to deny the Bossier’s claim over the next eight months until the Bossiers finally filed suit just a few days before the SOL on the third anniversary of Hurricane Katrina.
State Farm did not confirm Mr. Ziz’s account of the damage to the Bossier’s property until after the suit was filed. Counsel for the Bossiers attached Mr. Ziz’s affidavit to a Motion for Partial Summary Judgment on Dwelling Extension filed August 7, 2009, the deadline for dispositive motions in the case. (Exhibit 2)
Counsel also attached the May 11, 2009, recorded statement State Farm took of Mr. Ziz confirming his eye witness account (Exhibit 3); and Mr. Ziz’s sworn deposition testimony given July 9,2009, that confirms without contradiction his eyewitness account of the destruction of the outbuilding and fence prior to the arrival of water (Exhibit 4).
The Bossiers also filed a Motion for Partial Summary Judgment on Accidential Direct Physical Loss with a related Memorandum of Support. Sop sent all of these over just as I was finishing the post on Judge Walker’s in camera review of State Farm’s privilege log.
Thanks to a comment on the Order from eagle eye Shirley Heflin, legal secretary for Chip Merlin for 20 years before she became a full-time student, I caught an important connection that I’d missed earlier.
And my personal favorite part of this is: “The privilege claimed for all the documents reviewed by the Court is “anticipation of litigation.” … Documents prepared in the ordinary course of business are not protected as prepared in anticipation of litigation…”
If it were allowed, it would mean that State Farm was “investigating” a claim with an eye toward litigation for who knows how long? From the inception of the claim?…No, that’s not the way its supposed to be.
I pulled Walker’s Order and checked dates in a footnote to her “favorite part”.
1The emails are dated between March 6, 2008 and June 19, 2008
Why would Scot Spragins be corresponding with others in “anticipation of litigation” of the Bossier’s claim after State Farm was in receipt of the Ziz affidavit? What was taking place from March to June that might have caused State Farm to decide to let the Bossier claim go to litigation? Could Bossier be collateral damage? The docket for McIntosh v State Farm during the period email messages were flying suggests that possibility – and so does the location of the Bossier property relative to McIntosh.
If Mr. Ziz’s eyewitness report were not so compelling, there would be no reason to consider possible reasons Bossier went to litigation:
Joseph F. Ziz, Sr. lives “across the street” from the former residence of Reginald “Ed” and Katie Bossier… His front door faces South toward the Bossier’s property and the Back Bay of Biloxi.
On August 29, 2005, Mr. Ziz and his family members were in the home as Hurricane Katrina began and worsened…At approximately 7:30 a.m., Mr. Ziz heard combined “roars” so he directed everyone in the house into the hallway as he believed tornadoes were approaching and he knew the hallway to be the safest place in his house – his wife, Patti; son, Joseph Ziz, Jr.; daughter Bryce; and a neighbor, Paul, who had come over earlier after the electricity went out.
Mr. Ziz then returned to his front door and looked out. The Bossiers’ fence was completely gone. The Bossiers’ detached accessory building (which was by itself a very large structure) was completely gone, except for its slab.
Once the obstruction of the Bossiers’ fence was removed, Mr. Ziz had a clear view of the Back Bay of Biloxi. There was a high, or flood, tide, but the waters of the Bay had not yet reached the Bossiers’ residence, or the slab of the detached accessory building.
When the top of an eighty (80) foot tall sweet gum tree came through his roof, Mr. Ziz informed everyone in his house they needed to leave and seek safer shelter. Affiant left his house via the front door, as he left, he noticed that a section of the Bossiers’ roof was lying against the front of his house.
The approximate twenty foot by twenty foot (20′ x 20′) section of the Bossiers’ roof consisted of shingled decking with rafters attached. Mr. Ziz cannot say whether or not the section of roof came from the Bossicrs’ residence or the detached accessory building.
At this point, the water was still not high, and Mr. Ziz, his family, and Paul, were able to leave his house via motor vehicles.
On subsequent inspection of several properties in his neighborhood, Mr. Ziz was able to observe a discernable path of twisted trees that crossed the Bossicrs’ property as well as several other properties in his neighborhood. One of the twisted trees was located directly North of the Bossiers’ residence.
Bossier’s motions for summary judgment have traction, that’s for certain. There were two additional exhibits to the motions – both related to the amount of coverage and/or amount due the Bossier’s. For those who want a complete set of documents, here are the deposition of State Farm’s 30(b)(6) representative Tip Pupua and the Bossier’s list of property lost when the dwelling extension was destroyed.
As the exhibits demonstrate, the Bossier motions are solid:
Plaintiff’s home was substantially destroyed by Hurricane Katrina, to the extent that demolition was required. At the time of the loss, Plaintiff was insured by State Farm under a policy covering “accidental direct physical loss” to the dwelling and totaling $409,452.00.(Exhibit 1 at pp. 41-42)
The Hurricane Katrina loss to the home constitutes an “accidental direct physical loss” and all is covered unless State Farm can prove the applicability of a valid exclusion as to any part. The undamaged portion of Plaintiff’s home which was required to be demolished likewise constitutes an “accidental direct physical loss” shifting the burden to State Farm to prove the applicability of a valid exclusion.
Plaintiff’s contents were insured, according to State Farm, for a maximum amount of $255,907.00. (Exhibit 1 at p. 45). The policy covers personal property loss caused by a “windstorm.” All of Plaintiff’s personal property is covered unless State Farm can prove the applicability of a valid exclusion.
While issues of fact exist concerning the applicability of a valid exclusion, no genuine issue of material fact exists on the question of whether Plaintiff’s damage constitutes an “accidental direct physical loss” caused by a “windstorm.”
Plaintiff is entitled to partial summary judgment on Plaintiff’s claims of coverage for all Hurricane Katrina losses, including demolition of the undamaged portion of the building, leaving only the remaining issue of the applicability of a valid exclusion to be tried.
Bossier’s motion on the dwelling extension is even stronger and based on uncontested facts.
Defendant had no legitimate, arguable basis for denial of the dwelling extension claim nor for the contents located within same…
The two motions, each for partial summary judgment, do not represent the whole of the issues. Plaintiff’s Counsel makes it clear there are issues to be decided at trial:
…issues would remain to be tried, including whether State Farm can meet its burden of proving the applicability of a valid exclusion as to any portion of Plaintiff’s loss, punitive damages, and other damages issues.
What Bossier is asking through the two motions is summary judgment on these issues:
- Partial summary judgment declaring that Plaintiff’s damage from Hurricane Katrina constitutes an accidental direct physical loss covered by the policy, that demolition of the undamaged portion of Plaintiff’s dwelling constitutes an accidental direct physical loss covered by the policy, and that Plaintiff’s loss of personal property constitutes a loss caused by “windstorm.”
- Partial Summary Judgment on Dwelling Extension as set forth herein and awarding Plaintiff thetotal sum of $66,001.00 for dwelling and $52,300.00 for dwelling extension contents. Moreover, Plaintiff is entitled to attorney fees and expenses on these claims given the lack of arguable reason, and would suggest an additional 33% be added to same. Finally, interest should be awarded and the issue of punitive damages should be submitted to the jury at the trial of this cause.
Reading the two motions, Bossier simply has had too many uncontested facts, particularly with the eyewitness affadavit, to have ever reached the point of litigation, much less such contentous litigation.
Most recently we’ve seen document that should have been in the claim file listed in the privilege log. However, there has been so much more. One issue that stands out more than others at this point is State Farm’s insistence in limiting information on other claims to a much smaller geographic area that in other cases. However, if you consider that with the map showing the proximity of the McIntosh property and the March – June period of prelitigation protected communication, the possibility of Bossier as collateral damage of State Farm’s qui tam defense strategy becomes a probability.
Several weeks ago I noticed Spragins taking a “shut ’em up – shut ’em down” approach to cases that might have an impact on the Rigsby’s qui tam case – the over the top effort to discredit Neil Hall is just one example; but there are more examples in cases here and at least one or two in Louisiana.
It’s something to think about, as is the review of law related to summary judgment in Judge Vance’s Order and Reasons:
A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, “that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not
rest upon the pleadings, but must identify specific facts that establish the existence of a genuine issue for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
There is no question Bossier has met the standard and it is impossible to conceptualize how State Farm could meet those required of a nonmovant on the issues brought forward in the motions.